45. I find it impossible to read the speeches in Three Rivers as proceeding on any other basis than that material injury to the claimant is an essential element in a claim for misfeasance in public office. The majority of the Court of Appeal had held that the notion of proximity should have a significant part to play in the tort of misfeasance, just as in negligence. The House rejected that approach. Lord Steyn commented, at p 193H: "The state of mind required to establish the tort as well as the special rule of remoteness keeps the tort within reasonable bounds." He went on to hold, at p 196A-B, that the plaintiff must establish that the defendant acted not only in the knowledge that the act was beyond his powers "but also in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member." If Lord Steyn had thought that a claim could lie without proof of loss, he could scarcely have failed to mention it in this context. In fact, he considered, at p 196C, that, by limiting the recoverable losses in this way, the test which he favoured

"represents a satisfactory balance between the two competing policy considerations, namely enlisting tort law to combat executive and administrative abuse of power and not allowing public officers, who must always act for the public good, to be assailed by unmeritorious actions."

For Lord Steyn, therefore, the need to prove loss of the requisite kind was of the very essence of the tort and played a crucial part in defining its scope.

46. Similarly, Lord Hobhouse commented, at p 231D-E, that the tort is historically an action on the case and is not generally actionable by any member of the public. He continued:

"The plaintiff must have suffered special damage in the sense of loss or injury which is specific to him and which is not being suffered in common with the public in general. The plaintiff has to be complaining of some loss or damage to him which completes the special connection between him and the official's act."

Lord Hobhouse distinguishes the plaintiff with a right of action from others within the range of the official's act precisely by the fact that it has caused him loss or damage.

47. I do not understand the Court of Appeal, or indeed counsel for the respondent, to have questioned the general position as stated in these authorities. Brooke LJ held, however, that the requirement of proof of loss or damage does not apply where the defendant has infringed "a right which may be identified as a constitutional right": [2005] QB 883, 898, para 48. Since in the present case the respondent's right which the three officers had infringed was to be regarded as a right of this level of importance, "his cause of action in misfeasance in public office was complete even without proof of special damage": [2005] QB 883, 899, para 52. Similarly, Laws LJ held, at pp 902 - 903, para 67:

"The wrongful act may have interfered with a right of a kind which the law protects without proof of any loss. In that case, the public officer's interference with the right will complete the tort and no actual damage needs to be shown. This is the second class of case. Its paradigm is the instance where the public officer's unlawful conduct has interfered with a constitutional right."

I need not consider whether, as counsel for the Home Secretary suggested, by describing interference with a constitutional right as the paradigm, Laws LJ was indicating that the same approach could be applied in a wider class of cases.

48. Brooke LJ, [2005] QB 883, 898, para 48, sought authority for this significant departure from the law laid down in Three Rivers DC v Bank of England (No 3) in "Ashby v White and the other election cases" which

"show that if there is a right which may be identified as a constitutional right, then there may be a cause of action for an infringement of that right without proof of special damage, provided that there is something more than mere infringement."

He did not consider that one could safely explain Ashby v White as a case involving the infringement of a franchise (being a property right). He added, at para 49:

"If this is the correct analysis of Ashby v White, then there are some rights recognised by English law which in constitutional significance are every much as important in our liberal democracy as the right to vote."

On this basis he held that the three officers should be held liable because they had maliciously or recklessly infringed Mr Watkins' right of unimpeded access to his solicitor which formed an inseparable part of his "constitutional right" of unimpeded access to the courts themselves. See [2005] QB 883, 886-887, para 3.

49. In my view, the dissenting judgment of Holt CJ, which was upheld by your Lordships' House in Ashby v White (1703) 1 Sm LC (13th ed) 253, will not bear the weight that Brooke LJ places upon it.

50. The plaintiff was a burgess of Aylesbury and, as a member of the corporation, claimed a right to vote for two members of Parliament in an election in January 1701. He alleged that White and his fellow constables, fraudulently and maliciously intending to indemnify him, hindered him from giving his vote and absolutely refused to permit him to give his vote "to the enervation of the aforesaid privilege of him". He claimed to have been injured thereby and to have suffered damage to the value of £200. The jury returned a verdict in favour of the plaintiff and the defendants applied for arrest of judgment.

51. That is to put the dispute in purely legal terms, but there was much more to it. It was really a set-piece battle in a war between the two Houses of Parliament and between the Whigs and the Tories, with Ashby, a poor cobbler, being backed by the most prominent Whig and the constables by the Tory lord of the manor. See E Cruickshanks, "The case of the men of Aylesbury, 1701-4" in C Jones (ed), Party and Management in Parliament, 1660 - 1784 (1984) 87.

52. The case came before the Queen's Bench in the autumn of 1703. Holt CJ's views on the question appear in at least three places: in the reported judgment, in a report which he apparently drafted for the House of Lords when their decision in the case brought them into conflict with the House of Commons and in a version published from his manuscript in 1837. Only his judicial opinion can provide authority, however, and it seems to be agreed that the report reproduced in Smith's Leading Cases is the most reliable and complete.

53. The majority of the court were in favour of arresting judgment, inter alia, on the ground that the plaintiff's privilege of voting was not a matter of property or profit, so that the hindrance of it was merely damnum sine injuria. They also held that the issue of his right to vote was a matter for Parliament rather than for the judges and that great inconvenience would follow if the judges determined the point one way and Parliament the other. At least in retrospect, the importance of the case in the history of the constitution lies in Holt CJ's defence of the jurisdiction of the Queen's Bench against the privilege asserted by the House of Commons. But Ashby actually lost in the Queen's Bench and so he applied for, and was granted, a writ of error. On 14 January 1704, ten judges being in attendance, the majority of the Whig House of Lords reversed the decision of the Queen's Bench. At the time, this decision, upholding the jurisdiction of the courts against the Commons, was seen as an attack by the Lords on the right of the Commons to decide all matters concerning elections to the House. See 14 Howell's State Trials 695, 696-778. The resulting conflict between the Houses was to continue until the Whigs regained control of the House of Commons after the general election of 1705.

54. In meeting the objection that Ashby's complaint lay within the jurisdiction of the Commons, Holt CJ exclaimed, 1 Sm LC 253, 276, "O! by all means, be very tender of that," and went on to argue that, if a matter came within the jurisdiction of the court, the judges were bound by their oaths to judge of it: "This is a matter of property determinable before us." Later, at p 278, he acknowledged the right of the House of Commons to determine the matter in the course of inquiring into an election, "but we must not be frighted when a matter of property comes before us, by saying it belongs to the parliament; we must exert the queen's jurisdiction."

55. The idea that the plaintiff's privilege or right to vote "as one of the persons qualified to represent all the Commons of England" could be regarded as a matter of property was therefore fundamental to Holt CJ's judgment and to his defence of the jurisdiction of the court. Earlier, at p 270, he had described the right as "a personal right" as opposed to "a real privilege". Of course, he may have been wrong to classify the right to vote in this way and to say that a dispute about it was a dispute about a matter of property. But what matters for present purposes is how he chose to describe Ashby's right to vote, not whether his description was technically sound. Indeed, even if his classification of the right were to seem forced, that would only emphasise its importance: despite any difficulties, he formulated the claim in this way because he thought he needed to. If, instead, he had classified the right to vote as, say, a constitutional right relating to the selection of members of the House of Commons, he would have run slap up against the objection that the dispute was all a matter for the House of Commons, not for the judges. It was precisely by characterising the right to vote as a property right that Holt CJ avoided that objection and affirmed the jurisdiction of the court in the face of the assertion of the privilege of the House of Commons. And once the plaintiff's right had been characterised in this way, it was relatively easy to conclude that he was entitled to damages for interference with the right even though he could not prove actual loss.

56. In the present case, the respondent has never sought to frame his case as one of interference with a right of property in the letters from his legal advisers. So he cannot rely on Holt CJ's actual decision. But Brooke LJ looks to it for support for the view that a plaintiff is entitled to damages for interference with a constitutional right. This respectfully seems to me to involve the Court of Appeal ignoring the actual terms of his decision and remodelling it in twenty-first century terms which would not only have been unrecognisable to its author but which he would actually have been at pains to avoid.

57. Moreover, although this House did not characterise the dispute as one relating to property, their reasoning proceeded on the basis that "The plaintiff, in this case, hath a privilege and a franchise, and the defendants have disturbed him in the enjoyment thereof, in the most essential part, which is his right of voting": 14 Howell's State Trials 695, 786. So, even on that version, there is no basis for saying that Ashby v White cannot safely be explained "as a case involving the infringement of a franchise (being a property right)".

58. Leaving on one side the proper interpretation of Ashby v White, the Court of Appeal's decision is noteworthy for the novel use which it makes of the concept of a "constitutional right" or "a right of this level of importance" to create a type of misfeasance in public office which is actionable per se. For such an innovation to be workable, it would have to be possible to identify fairly readily what were to count as "constitutional rights" for this purpose in a country without a written constitution. As it happened, in the present case the Court of Appeal was able to refer to R v Home Secretary, Ex p Leech [1994] QB 198, 210A-B where Steyn LJ had commented that, "even in our unwritten constitution," the basic right of access to the court "must rank as a constitutional right." There is, however, no magic in the term "constitutional right". So, for instance, Lord McCluskey must have been making much the same point in Leech v Secretary of State for Scotland 1992 SC 89, 98 when he spoke of "a basic civil right of access to the courts." Moreover, as Laws J remarked in R v Lord Chancellor Ex p Witham [1998] QB 575, 585G, although the right of access to the courts has been described as a constitutional right, "the cases do not explain what that means."

59. Laws J sought to provide the necessary explanation, at p 581D-F:

"In the unwritten legal order of the British state, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it."

He considered a right to be "constitutional" because it can be abrogated only by express enactment. But, if the adjective has any particular force, surely such rights can be abrogated only by express enactment because they are "constitutional", in the sense that they are seen as part of the British constitution which Parliament would not change except on due deliberation leading to express enactment.

60. That is certainly how this House approached the converse case of a common law constitutional impediment in Nairn v University of St Andrews [1909] AC 147. A number of women graduates of St Andrews and Edinburgh, who, as graduates, were members of the general council of their university, sought a declarator that they were entitled to vote under section 27 of the Representation of the People (Scotland) Act 1868. The section provided that "every person" whose name was on the register of the general council, if of full age "and not subject to any legal incapacity", was to be entitled to vote for the member of Parliament for the university. This House held that the section did not confer a right to vote on women graduates. Lord Loreburn LC commented, at p 161, "It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process." Similarly, Lord Ashbourne said, at p 163, "If it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement."

61. Although embodied in a statute, in a system of universal suffrage today the right to vote would fall within everyone's notion of a "constitutional right". And, doubtless, the principle of legality would apply in construing any statutory provision which was said to have abrogated that right. Indeed, it is in the sphere of interpretation of statutes that the expression "constitutional right" has tended to be used, more or less interchangeably with other expressions. In R v Home Secretary, Ex p Simms [2000] 2 AC 115, 130D-E, in the general context of the power of the Home Secretary to make rules about prisoners' contacts with journalists who might investigate the safety of their convictions, Lord Steyn said that there was a "fundamental or basic right" at stake and that, in interpreting the rule-making power in the Prison Act, the principle of legality operated as a "constitutional principle". In the well-known passage in his speech in the same case, [2000] 2 AC 115, 131E-G, Lord Hoffmann spoke of legislation "contrary to fundamental principles of human rights" and of "the basic rights of the individual". Fluctuations in terminology are only to be expected, since the operation of the canon of construction does not depend on attaching a particular label, "constitutional" or "fundamental" or "basic", to the legal rule in question. Rather, the courts interpret the particular provision in this way because the substance of the rule is perceived to be so important that Parliament must squarely confront what it is doing when it interferes with it and must accept the political cost. That approach to interpretation is not confined, of course, to legislation affecting fundamental or basic rights. For instance, in Mortensen v Peters (1906) 8 F (J) 93 the Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown. The defence failed for a variety of reasons. Lord Salvesen commented, at p 108, that it could scarcely be supposed that the British Parliament should pass legislation placing British fishermen under a disability which did not extend to foreigners. "I think," he added, "it was a just observation of the Solicitor General that, if legislation of this nature had been proposed, and the words inserted which the Dean of Faculty maintained were implied, it would never have been submitted by a responsible minister or have received the approval of Parliament."

62. The term "constitutional right" works well enough, alongside equivalent terms, in the field of statutory interpretation. But, even if it were otherwise suitable, it is not sufficiently precise to define a class of rights whose abuse should give rise to a right of action in tort without proof of damage. Moreover, any expansion to cover abuse of rights under "constitutional statutes", as defined by Laws LJ in Thoburn v Sutherland City Council [2003] QB 151, 186 E-G, would carry with it similar problems of deciding which statutes fell within the definition. Even supposing that these could be resolved, it is by no means clear that the abuse of "constitutional rights" or rights under "constitutional statutes" should necessarily attract a remedy which would be denied for the abuse of other important rights. Is the prisoner who suffers no material harm from abuse of his right to correspond with his solicitor necessarily more deserving of a remedy than the patient who is actually perfectly healthy but whose general practitioner maliciously refuses to see him? Or than the applicant who is not actually entitled to a social security benefit but who is maliciously denied the appropriate hearing by the relevant official? At least within the realm of tort law, questions about the availability of a remedy are best answered by looking at the substance of the supposed wrong rather than by reference to a somewhat imprecise label which lawyers might attach to it in another connexion.

63. The desirability of looking at the substance of the matter is relevant to the present appeal. The Court of Appeal was prepared to grant the respondent damages on the basis that the officers abused his constitutional right of access to the courts. But, as counsel for the Home Secretary pointed out, this is to put a somewhat artificial overlay on the facts. Rules 37A and 39 of the Prison Rules were made in order to give practical expression to the "constitutional right" of prisoners to have access to the courts and to a solicitor. But, for that very reason, the officers were almost certainly not aware that they were interfering with any constitutional right as such. What they were doing was maliciously or recklessly failing to apply rule 37A or 39. On the approach favoured by the Court of Appeal, the officers would therefore be made liable not so much for their actual malicious or reckless disregard for the rules, but for unconsciously abusing a right which the rules embody. Again, there is a risk that the result would depend on potentially difficult legal distinctions rather than on the nature and impact of the defendants' abuse.

64. My Lords, despite the encircling difficulties, it might be worth trying to deploy the concept of constitutional rights in the law of tort if it represented a way forward which best fitted the present state of the law. But it does not. Most of the references to "constitutional rights" are to be found in cases dealing with situations before the Human Rights Act brought Convention rights into our law. In using the language of "constitutional rights", the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation. Now that the Human Rights Act is in place, such heroic efforts are unnecessary: the Convention rights form part of our law and provide a rough equivalent of a written code of constitutional rights, albeit not one tailor-made for this country. In general, at least, where the matter is not already covered by the common law but falls within the scope of a Convention right, a claimant can be expected to invoke his remedy under the Human Rights Act rather than to seek to fashion a new common law right: Wainwright v Home Office [2004] 2 AC 406, 423, para 33 per Lord Hoffmann. It may be - as counsel for the Home Secretary was inclined to concede, even though the point was not fully argued - that someone in the respondent's position could now bring proceedings under section 8 of the Human Rights Act for damages for breach of certain of the guarantees in articles 6 and 8 of the Convention. But, if so, in considering whether to award damages, the courts would apply the principles developed by the European Court of Human Rights: R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. Exemplary damages form no part of the existing jurisprudence of that court. Therefore, in my view, it would be wrong in principle for the House now to develop the common law so as to create a situation where exemplary damages could be awarded when they would not be available in equivalent proceedings for breach of the relevant Convention right. No award of exemplary damages would be competent, either, it may be noted, in equivalent proceedings under Scots law.

65. The availability or non-availability of other remedies for the three officers' misfeasance cannot be a decisive factor in deciding whether the respondent has a claim for damages without proof of material damage. Nevertheless, it is worth noting that, as Lord Bingham suggests, the law and the disciplinary system should not in fact be powerless to deal with officers who may, in future, abuse what is an important position of trust.

66. For these reasons, as well as those given by Lord Bingham, I too would allow the appeal and make the order which he proposes.

LORD WALKER OF GESTINGTHORPE

My Lords,

67. I have found this a difficult and troubling appeal. The unchallenged findings of His Honour Judge Ibbotson are that on three separate occasions (on 17 September 1998 and 5 October 1998 at Wakefield Prison, and on 5 December 2000 at Frankland Prison) three different prison officers, deliberately and in bad faith, broke the Prison Rules by opening or reading correspondence addressed to the respondent, Mr Watkins, (on the first two occasions) by his solicitors and (on the third occasion) by the Durham County Court. In the first incident the officer took out and inspected the contents of one package which had already been opened, and opened and inspected the other in front of the respondent. His protest was met by the comment "so report me to John Major" (the prison officer cannot have taken much interest in current affairs). In the second incident the officer "proceeded to rip open" a letter in front of him. In the third incident the officer read documents likely to relate to proceedings in which he (the officer) was a defendant (the officer's evidence of his ignorance of the proceedings was disbelieved, as he had signed a statement of truth on his defence).

68. Each of these incidents was an immediate and intentional breach of the respondent's right to unimpeded access to the court, either directly or through his solicitors. In its impact on the respondent each incident was likely to be much the same as an actual assault which occasioned no lasting harm, such as a slap in the face. Whether or not the respondent suffered distress or depression as a result (and the judge commented that he appeared "to thrive on these conflicts") it was an affront, and a deliberate affront, at which he was entitled to feel real indignation. But whereas even the most trifling and transient physical assault would undoubtedly have given the respondent a cause of action in private law for trespass to the person, sounding in damages (and if appropriate aggravated or exemplary damages), if the appellant Home Office is right the affronts which the respondent suffered give him no private law remedy. He would be left with the possibility of obtaining vindication of his rights by proceedings for judicial review (with no prospect of damages), by enforcement of the disciplinary code to which prison officers are subject, or by a criminal prosecution for misfeasance in public office. He cannot obtain relief by proceedings for the tort of misfeasance in public office, it is said, because he has suffered no damage which the law will recognise. This is a far cry from the stirring language of Holt CJ in Ashby v White (1703) 1 Sm LC (13th ed) 253, 273,

"If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal."

69. Mr Sales (on behalf of the Home Office) has submitted that these avenues provided by public law give the respondent adequate protection. I have to say that I am rather sceptical about that. Judicial review (with the preliminary filter of the need for leave, and little prospect of obtaining an order for cross-examination of witnesses) is hardly a satisfactory substitute for an action in the county court. No disciplinary action was (as the Treasury Solicitor has informed the respondent's solicitors) taken against any of the officers. Nor has there been any prosecution, in which a different burden of proof would apply.

70. Two of the incidents on which the respondent succeeded (and another twenty-two allegations on which he failed) occurred before the coming into force of the Human Rights Act 1998. Only the last incident at Frankland Prison occurred after the Act came into force. Unsurprisingly, therefore, the respondent's proceedings did not seek to rely on sections 6, 7 and 8 of the Act. Before the House each side was, for different reasons, a little wary about the significance of the Act. The position of the Home Office was that a claim would now be possible in comparable circumstances, but that a claimant would certainly not obtain exemplary damages and would probably be told that a declaration, or at best nominal damages, amounted to just satisfaction: see R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. The respondent's position was that it was not clear that substantial damages might not be awarded, but that in any case the coming into force of the Act should not deter the House from developing the tort of misfeasance in public office as justice and principle required, since the Act's reach (and the requirements for liability under sections 6, 7 and 8) are very different from those of the tort.